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Is It Legal To Disinherit A Family Member?


No one likes to contemplate leaving a family member out of their estate planning if there is an alternative.  Sadly, sometimes there is not. There are several reasons why a person may want to disinherit someone who was once a potential heir.  The majority of those reasons will not be against the law in the state of New York. That said, there are some situations in which a family member cannot be legally disinherited – a surviving spouse being the most commonly cited example. New York law explicitly grants them a share of the estate in all but the rarest situations.

Children Are Most Common

One of the most common family members that people attempt to disinherit in their estate planning is a child or children. There are several reasons why a parent might decide to disinherit their child. Whether it is because they do not trust the child’s decision-making capabilities, because they want to provide for less well-off family members, or simply because they do not get along. In any case, it is generally possible to do so, given that New York law does not grant a deceased person’s children a share of their estate by law.

It is, however, easier to preserve a share of your estate for your child without disinheriting them than it might be for other family members. For example, if you have a fear that your child will spend an inheritance frivolously, you may choose to place funds into a living trust with them as the beneficiary. Another possibility to preserve an inheritance would be to add what is known as an ‘in terrorem’ clause to your will. These clauses forbid a beneficiary from attacking a will if they are named in it.

Spouses Are Protected

While disinheriting a child may be possible, a surviving spouse occupies a very different position. State law allows a spouse to elect to take their lawful portion of their deceased spouse’s estate, which is generally speaking  one-third (⅓) of the net estate. The elective share is settled New York law, but there are situations in which it would not apply. The most common are (1) if the elective share was waived in a pre- or postnuptial agreement; and (2) when the spouses separated or divorced (or had the marriage annulled).

It is important to keep in mind, despite the existence of the elective share, that testamentary substitutes can lower its value in New York. Testamentary substitutes are gifts and transfers that have occurred to the spouse within the last year or so before the person’s passing; depending on the specific situation, it can lower the amount of the elective share, which can in turn change the motivation one might have to disinherit your spouse in the first place.

Call A Mahopac or Pleasantville Estate Planning Attorney

Deciding to disinherit a family member can be a difficult choice, but it may be necessary. Regardless, if you must, it is crucial to consult a knowledgeable Westchester County or Putnam County estate planning attorney so that you can plan appropriately. Contact Meyer & Spencer, PC to schedule a consultation today.

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